A new study says that the fair use defense for GenAI models does not exist in the EU, and the EU exceptions don’t cover them either.

This study, commissioned by the European Parliament’s Committee on Legal Affairs (JURI) and available here, provides a comprehensive analysis of how GenAI systems challenge the core principles of EU copyright law, particularly concerning AI training practices and the legal status of AI-generated content. It identifies a “legal mismatch between AI training practices and current text and data mining exceptions, and the uncertain status of AI-generated content.” These developments pose “structural risks for the future of creativity in Europe,” emphasizing the need for robust reforms that balance innovation with authors’ rights and fair remuneration.

Text and Data Mining (TDM) in the Copyright in the Digital Single Market (CDSM) Directive is defined as “any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations.” The original intent of Articles 3 and 4 was to “promote research and innovation” by facilitating data analysis, not to enable “large-scale model training” for expressive or synthetic purposes.

GenAI “synthesise[s] new outputs by encoding and internalising expressive features of the input content.” This goes “beyond the analytical purpose envisaged by the TDM exceptions, moving instead toward expressive reproduction.” Unlike traditional TDM which “finds patterns,” GenAI “synthesises new expressions.”

“Equating TDM with AI training obscures the distinct and additional legal stages involved in commercial model development.” GenAI training “exceeds the analytical purpose, violates the proportionality limits of the three-step test, and triggers reproduction rights that cannot be bypassed by invoking TDM.” This means that the current EU TDM exception is ill-suited for GenAI training, risking distortion of EU copyright exceptions.

What about a fair use defense? The current EU copyright framework does not recognize a general fair use defense. Therefore, AI-generated outputs that include protected expression without a valid exception remain unlawful in the EU. The study emphasizes that EU copyright law remains human-centric, requiring “human creativity and authorship” and protecting works that are the “author’s own intellectual creation”.

In their efforts to “articulate a balanced regulatory model”, the paper concludes with four recommendations:

1. Closing regulatory gaps, particularly around transparency, remuneration, and traceability;
2. Clarifying normative boundaries, including authorship standards, liability attribution, and the distinction between data analysis and content reproduction;
3. Reinforcing safeguards and procedural protections, through interpretative guidance, technical standards, and interoperable disclosure mechanisms;
4. And fostering inclusive governance, through structured dialogue, educational resources, and investment in lawful training datasets.

It’s a long study (175 pages) and I’ll be honest; I didn’t read the whole thing – I used AI to summarize and extract key points, some of which I’ve covered here. Regardless, it illustrates how the fair use defense that is the crux of the argument here in the US won’t mean a thing in other jurisdictions around the world. The battle is far from over.

So, what do you think? Will the GenAI companies find a more difficult copyright battle in the EU? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Microsoft Designer, using the term “a person pushing a robot out the door of a European courtroom”.

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